To Be Submitted By:
J. EVAN PERIGOE, ATTORNEY.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION - THIRD DEPARTMENT
In the Matter of the Claim for Compensation Under
the Workers Compensation Law made by LIDIA BURGOS,
Claimant-Appellant.
- against -
CITYWIDE CENTRAL INSURANCE PROGRAM, CO.
Employer-Respondent,
- and -
INDEMNITY INS. OF N. AMERICA INC, (C/O ESIS)
Carrier -Respondent,
- and -
WORKERS’ COMPENSATION BOARD,
Respondent.
Case No. 523075
WCB No. 00727421
BRIEF FOR EMPLOYER-RESPONDENT
WEISS, WEXLER & WORNOW, P.C.
Attorneys for Employer/Carrier-Respondents
25 Park Place, 4th Floor
New York, New York 10007
(212) 227-0347
J. EVAN PERIGOE
Attorney
For filing of an original and nine copies with:
ROBERT D. MAYBERGER, CLERK
State of New York Supreme Court of the
Appellate Division, Third Judicial Department
P.O. Box 7288, Capitol Station
Albany, New York 12224
I, J. Evan Perigoe, do swear under penalty of perjury that I am an attorney licensed to
practice in New York, and that my place of business is 25 Park Place, 4th floor, New
York, NY, 10007. I further swear under penalty of perjury that on October 11, 2016, I
served two copies of this respondent s brief upon each of the following parties by
depositing those copies at an official depository under the exclusive care and custody of
U.S. Postal Service within the State of New York, with sufficient postage and with the
following last known addresses of each party upon the envelopes:
HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Respondent Workers Compensation Board
120 Broadway
New York, New York 10271
LAW OFFICE OF MICHAEL D. UYSAL, PLLC
Attorney for Claimant-Appellant
5030 Broadway, Suite 662
New York, NY 10034
OFFICE OF THE SECRETARY
NEW YORK STATE WORKERS COMPENSATION BOARD
328 State Street
Schenectady, New York 12305-2318
Dated: New York, New York
October 11, 2016
TABLE OF CONTENTS
PRELIMINARY STATEMENT 1
QUESTIONS PRESENTED 1
STATEMENT OF FACTS 2
ARGUMENT 7
I. THE COURT SHOULD UPHOLD THE BOARD S FINDING THAT THE APPELLANT WAS
ABLE TO DO WORK AT A LESS THAN SEDENTARY LEVEL AND THAT SHE IS ONLY
PARTIALLY DISABLED 7
(a) The Court should consider the evidence given by both Dr. Sotudeh and Dr.
Henoch 7
(b) The Board’s decision that the appellant’s functional ability allows her to do work
that is less than sedentary is supported by substantial evidence 8
(c) A claimant is not totally disabled simply because the work she can do falls outside
the strictures of the Board’s definition of sedentary work. 10
(d) The appellant can do some work that is less than sedentary and so she is not
totally disabled 14
II. THE COURT SHOULD UPHOLD THE BOARD S DECISION THAT THE APPELLANT HAD
AN LWEC 10% HIGHER THAN HER 75% DEGREE MEDICAL IMPAIRMENT 16
CONCLUSION 19
i
PRELIMINARY STATEMENT
The appellant, Lydia Burgos, suffered injuries on January 12, 2007, while
working for the Citywide Central Insurance Program, the respondent employer. The
appellant brought a workers compensation claim against Citywide and its insurance
carrier, Indemnity Insurance of North America, whose policy is administered by a third-
party manager, ESIS.
The claimant-appellant appeals to this Court from an August 6, 2015, decision of
the Workers’ Compensation Board. The appellant contends the Court should vacate the
Board’s decision, which found she was partially disabled and had 85% loss of wage
earning capacity (or LWEC), and substitute a finding that the appellant has either (a) a
permanent total disability or, if she has only a partial disability, (b) that she has a 100%
loss of wage earning capacity.
QUESTIONS PRESENTED
I. The Court upholds the Board’s factual findings, functional evaluations and
disability conclusions when they are supported by substantial evidence.
Dr. Sotudeh found the appellant could sit, walk or stand for 4 hours per
day. Dr. Henoch found that she could sit for up to 20 to 30 minutes at
once. Should the court uphold the Board’s finding that the appellant was
able to do work at a less than sedentary level and that she is only partially
disabled?
II. The Court upholds the Board’s conclusions regarding a claimant’s LWEC
when these are supported by substantial evidence. Here, the Board found
the appellant had a severity J lumbar condition, could do work that was
less than sedentary, was 56 years old, had limited English reading and
speaking ability, could not write in English, had an 8th grade education,
and only had experience in jobs involving all day sitting or standing.
Should the Court uphold the Board’s decision that the appellant had an
LWEC that was 10% above her 75% degree of medical impairment?
1
STATEMENT OF FACTS
On July 25, 2007, Citywide filed a C-2.0 form stating that the appellant, a home
attendant, reported that she had a back injury while lifting a patient. (R. 13-14.) The
appellant underwent two surgeries as a result of the accident, on December 1, 2009 and
February 16, 2012. (R. 68.)
In response to a Board order dated April 24, 2014, that she produce evidence on
the issue of whether she had reached maximum medical improvement, the appellant
produced a C-4.3 completed by Dr. Henoch, one of her treating physicians, dated June 4,
2014. (R. 62.) Dr. Henoch reported that the appellant had an impairment of the lumbar
spine with severity ranking J, although he failed to note whether she was at MMI. (R. 63)
Dr. Henoch s C-4.3 also stated that the appellant should never sit, never stand, never
walk, never climb, never kneel, never bend, stoop or squat, never engage in simple
grasping, never perform fine manipulation, never reach overhead, never reach at/or below
shoulder level, never drive a vehicle, never operate machinery, never be at extremes of
temperature or humidity, never engage in lifting, carrying pushing or pulling (although he
did not list any amount of weight to be avoided) and never be in a particular environment
(although he did not say what environment this was). (R. 64.) Dr. Henoch’s C-4.3 form
stated that the appellant’s exertional ability was limited to less than sedentary work. (Id.)
On May 21, 2014, Dr. Sotudeh performed an independent medical exam of the
appellant at the request of the carrier. In the report filed with the Board, Dr. Sotudeh
stated that his examination of the appellant’s lumbar spine revealed some radicular
findings and deficits of extension and lateral bending, but that that the appellant could
exercise a normal range of flexion. (R. 69-70.) Dr. Soutdeh also reported that his exams
2
of the left and right hip were both totally normal. (R. 70.) Dr. Sotudeh initially declined
to address the issue of permanency, (R. 70) but after he was provided with the reports of
the appellant s two operations and with over half a dozen diagnostic scans, he found that
the appellant should receive a class of 4 and severity ranking of F for the lumbar spine
(R. 78) under the Board’s 2012 guidelines.
Dr. Sotudeh also completed an IME-3 form that stated that the appellant was
capable of sitting, standing or walking for up to 4 hours each day, and that this could
include up to an hour of standing and an hour of walking, as well as 2 hours of sitting.
(R. 80.) This form also stated that the appellant should never lift more than 50 lbs, but
could lift up to 10 lbs continuously, up to 20 lbs frequently and between 20 and 50 lbs
occasionally. He also found that the claimant should only occasionally bend, squat, crawl
climb, run, or operate a motor vehicle but that she could continuously reach above
shoulder level. ( Id. ) Dr. Sotudeh also found the claimant was fully capable of fine
manipulation, as well as simple grasping, and that she could use both lower extremities
for repetitive movements, such as the operation of foot controls. ( Id.)
The law judge directed the parties depose Dr. Henoch and Dr. Sotudeh. (R. 81.)
When he was deposed on August 8, 2014, Dr. Sotudeh testified that he was a Board
certified orthopedic surgeon. (R. 89-90.) He essentially confirmed all of the findings
described above. (R. 99-101, 104-105.) While Dr. Sotudeh’s answers to questions show
that, even after 44 years of being licensed to practice medicine in New York, his English
is still not perfect, (R. 89) the doctor’s testimony was clear. Indeed, the appellant’s
attorney explicitly said that he understood the doctor at least four times. (R. 102-104).
3
More striking than anything Dr. Sotudeh said was that the appellant s attorney did
not ask him even a single question regarding his classification and severity rank of 4F or
any questions that could be read as attempts to undermine Dr. Sotudeh’s finding that the
appellant could sit, stand or walk for up to 4 hours per day.
D. Henoch failed to appear the first time he was scheduled to be deposed. (R.
141.) When he eventually appeared, on September 5, 2014, Dr. Henoch admitted that his
Board certification was in the area of family practice. (R. 116.) Dr. Henoch testified that
he noted that the appellant had trouble with prolonged standing and that she walked with
a cane and had a limp. (R 117.) Dr. Henoch testified that the appellant’s most recent
diagnostic scan, a CAT scan conducted on December 12, 2013, showed:
good incorporation of the anterior intervertebral body graft at the L4-L5
level, as well as noting fusion of the facet joints. No loosening of pedicle
screws. There was also a disc bugle at L3/L4. ... [And a] pedicle screw
and rod apparatus as the L4/L5 level which did not show any loosening.
(R. 119.) Dr. Henoch admitted that the surgery was successful. (R. 127.) Dr. Henoch
admitted that the appellant underwent physical therapy after that surgery that had
improved her mobility from the post surgical state. (R 127-128.)
When he was questioned on the appellant’s functional abilities, Dr. Henoch’s
testimony differed substantially from the statements in his C-4.3 that the appellant could
never engage in a single functional capacity listed on the form. Dr. Henoch said the
appellant could sit for 20 to 30 minutes and that she could lift the weight of a cup,
although he would not recommend she do so repetitively. (R. 122.) Dr. Henoch testified
that the reasons he found the appellant unable to work was that she would not be able to
travel to work, that she had reported trouble with personal hygiene and that she “ would
not be able to stay at work or sit even on a part-time basis at work. (R. 123.)
4
However, Dr. Henoch admitted that he did not know how the appellant reached
his office and that he only ever saw her unaccompanied. (R. 125.) Dr. Henoch admitted
that the last time he saw the appellant using a walker was in 2012, around the time of her
second surgery, and that she had progressed to using a cane. (R. 125-126.) Dr. Henoch
also said that it was very rare for him to have a patient who used a cane and yet was able
to work, saying that usually these were younger people. And while Dr. Henoch initially
testified that the appellant had difficulty with performing any household activities, such
as feeding (R. 128) as soon as he was specifically questioned on this, he admitted that he
had not noted difficulty” (R. 129) with the appellant s ability to eat.
While Dr. Henoch said that the appellant had difficulty with other activities of
daily living, it was clear from his testimony that the was essentially repeating the
appellant’s own reports; he could not even say whether she spent her time watching
television or whether she spent time on other activities. (R. 123, 128.)
At the hearing in this case on September 10, 2014, the carrier began by requesting
on the record that the law judge adjourn the hearing until the transcript of Dr. Henoch’s
testimony became available. (R. 142-143.) The appellant raised no objection. The judge
declined this request and counsel for the respondent objected on the record, stating that
she was unable to offer argument regarding Dr. Henoch’s testimony. (R. 143.)
At this hearing, the appellant testified that she was bom in the Dominican
Republic, where she attended school until the eighth grade. (R. 146.) The appellant
testified that she came to the United States nearly four decades earlier, in 1977. (R. 148.)
Before becoming a home attendant, she said she worked in a factory. ( Id. ) The claimant
said she speaks a little English and is able to read English, but not much. (R. 147.)
5
After argument, the law judge stated that:
The Board Panel has many decisions regarding qualifying for permanent
total and they are starting to define these letters. I find in the crosswalk
the J is in the marked category. Not a total. So the impairment rating is
75 percent.
The law judge then noted the appellant s age was 56 years, that she had an eighth grade
education, and that she had a limited work capacity. As a result, the law judge found that
the appellant had an 85% loss of wage earning capacity. (R. 153.)
The formal notice of decision, dated September 15, 2016, made these same
findings and also stated that: The claimant is capable of performing work involving less
than sedentary physical demands. (R. 158.) It also stated that “ Dr. Henoch was more
credible and persuasive - which was clearly a new finding given that Dr. Henoch’s
testimony had been unavailable to the trial judge at the time of the oral decision.
The appellant applied to a panel of the Workers Compensation Board for review,
arguing she was totally disabled or, in the alternative, had a 100% LWEC. (R. 161.)
The decision of the panel concluded that the appellant had soft tissue injuries to
the lumbar spine of severity J. The panel also concluded that both Dr. Henoch and Dr.
Sotudeh had found that the appellant was capable of less than sedentary work and
adopted that conclusion as its own. (R. 9-10.) According to the panel, the appellant’s
age of 56 years, her impairment, her inability to write English, her limited capacity to
read and speak English and education limited to the 8th grade made her “ less attractive on
the job market. Based on these factors, the panel found that the appellant had an 85%
Loss of Wage Earning Capacity. (R. 10.)
The appellant now submits this Court should overturn the Board and make the
same total disability or 100% LWEC findings it refused to.
6
ARGUMENT
I. The Court upholds the Board s factual findings, functional evaluations and
disability conclusions when they are supported by substantial evidence. Dr. Sotudeh
found the appellant could sit, walk or stand for 4 hours per day. Dr. Henoch found
that she could sit for up to 20 to 30 minutes at once. Thus, the Court should uphold
the Board’s finding that the appellant was able to do work at a less than sedentary
level and that she is only partially disabled.
Where the Workers Compensation Board decides a question of fact, such as what
medical evidence to credit or what reasonable inferences to draw from that medical
evidence, the Court will uphold the Board’s determination so long as it is supported by
substantial evidence. (See Floyd v Millard Fillmore Hosp., 299 AD2d 610, 612 [3rd
Dept 2002] citing Matter of Hosmer v Emerson Power Transmission, 295 A.D.2d 870,
871, 744 N.Y.S.2d 258; Matter of Cook-Schoonover v Corning Hosp., 291 A.D.2d 715,
716, 738 N.Y.S.2d 118, lv dismissed 98 NY2d 671, 774 N.E.2d 223, 746 N.Y.S.2d 458).
This deference extends to a Board’s determination that a claimant has a permanent partial
disability, rather than a total disability. (Ciprian v Barbizon Hotel, 305 AD2d 946, 947
[3rd Dept 2003].)
(a) In evaluating whether the decision rests on substantial evidence, the
Court should consider the testimony and records of both Dr. Sotudeh and
Dr. Henoch.
Here, the decision on appeal specifically stated that Dr. Henoch and Dr. Sotudeh
both credibly opined that the claimant was capable of less than sedentary work. (R. 9-
10). This is the only explicit judgment regarding credibility contained in the panel’s
decision. Thus, contrary to the appellant’s contention, there is no reason to believe that
the panel found Dr. Sotudeh’s testimony to be anything other than as credible as Dr.
Henoch’s. While the written decision the panel reviewed had stated that Dr. Henoch’s
testimony was more credible, there is no reason to believe that the panel adopted that
7
finding. Significantly, the law judge orally announced a finding of a 75% medical
impairment and a J severity ranking without having seen a transcript of Dr. Henoch s
testimony, making any commentary regarding the credibility of the two doctors in the
subsequent written decision purely commentary given as dictum.
(b) The Board s decision that the appellant’s functional ability allows her to
do work that is less than sedentary is supported by substantial evidence.
A person can be capable of working but be capable of doing only work that is less
than sedentary in two ways under the Board Guidelines. First, a person may be able to
perform the tasks defined as sedentary work but for only a period that is less than is
typical in a work setting. Second a person may be able to perform work, but only when
released from the strictures of sedentary work, such as the requirement that she or he be
seated most of the day.
Under the Board’s 2012 Guidelines, a person is able to do sedentary work if she
or he is capable of:
Exerting up to 10 pounds of force occasionally and/or a negligible amount
of force frequently to lift, carry, push, pull or otherwise move objects,
including the human body. Sedentary work involves sitting most of the
time, but may involve walking or standing for brief periods of time. Jobs
are sedentary if walking and standing are required only occasionally and
all other sedentary criteria are met.
(New York State Guidelines for Determining Permanent Impairment and Loss of Wage
Earning Capacity at 45 [2012]). The Board’s form C-4.3 states that a person is capable of
less than sedentary work if she or he is “ [u]nable to meet the requirements of Sedentary
Work.
The 2012 Guidelines do not state how many hours of sedentary work a person
must be able to perform each day to be considered capable of sedentary work. However,
the Board has found that claimants who are able to do sedentary work for less than an
8
eight hour work day should be found to be capable of less than sedentary work.
(Employer: Vrapo Construction, 2015 NY Wrk. Comp. LEXIS 10460, *5, *13-14 [WCB
No. 040 1664, November 12, 2015]; Employer: Rural Metro Corp., 2015 NY Wrk.
Comp. LEXIS 3967, *10 [WCB Doc. 2015 NY Wrk. Comp. LEXIS 3967, May 14,
2015].)
The Board has also recognized that while [s]edentary work involves sitting most
of the time (2012 Guidelines, 45) there are jobs that do not require this. Such jobs
include those that allow a person to sit and stand, or sit, stand and walk, at her or his
leisure (See Employer: Atria Assisted Living, 2007 NY Wrk. Comp. LEXIS 511, *2
[WCB No. 4050 6308, January 12, 2007]) and those that allow a person to change
position frequently, including those that allow someone to work from home (Employer:
We Transport Inc., 2015 NY Wrk. Comp. LEXIS 8680, *8, *19-20 [WCB No. G046
4143, October 06, 2015].
Here, Dr. Sotudeh found that the appellant could more than comply with the
lifting, pushing, pulling, walking and standing requirements given for sedentary work.
Thus, it was only his finding that the appellant could not sit, walk and stand for more than
four hours per day, or sit for more than two hours, that would stand in the way of a
finding that the appellant was capable of sedentary work.
While Dr. Henoch would have limited the appellant to only 30 minutes of sitting
at a time, he admitted that he did not know whether the appellant engaged in activities,
like watching television, that typically entail long periods of sitting. (R. 122, 128.)
While Dr. Henoch said she could not do any lifting, he admitted she could lift small
articles, like a cup of water, so long as she did not do so repetitively. (R. 122.) Dr.
9
Henoch said the appellant was not capable of sedentary work (R. 123) but also did not
give an upper limit on how long the appellant could sit, stand and walk over a given day.
The Board found that the appellant was capable of work that does not entail all
the requirements of sedentary work. The Board held that the claimant had a partial
disability rather than a total disability. (R. 9-10.)
(c) A claimant is not totally disabled simply because the work she can do falls
outside the strictures of the Board s definition of sedentary work.
Critically, this Court and the Board have both recognized that a claimant who is
capable of work that is not at the level of sedentary work is still capable of some work;
such claimants are not necessarily incapable of work activity despite the appellant s
claim to the contrary. (See App. Brief, 10.) Just last year, in Matter ofWormley v
Rochester City Sch. Dist.,126 AD3d 1257, 1258 [3rd Dept 2015] this Court was faced
with a case in which it noted that:
there is little question that [the claimant s] back injury prevents her from
prolonged sitting, walking, bending or lifting more than 10 pounds.
Claimant further takes several strong pain medications that leave her
unable to concentrate, cause memory loss, dizziness and blurred vision,
and prevent her from driving or operating any heavy machinery.
The Court upheld the Board’s finding that the claimant’s disability was less than total
despite the fact that anyone who cannot engage in prolonged sitting and who suffers the
severe non-exertional restrictions listed above is clearly incapable of sedentary work.
While it was the insurance carrier who appealed in that case, if a restriction to less than
sedentary work must lead to an automatic finding of a total disability, presumably this
Court would have corrected the Board’s decision sua sponte as an obvious error.
The Board’s case law is, likewise, replete with instances in which the Board
found that a claimant who was limited to less than sedentary work was not totally
10
disabled. (Employer: Oldcastle Materials Inc., 2016 NY Wrk. Comp. LEXIS 4607, *8,
*10-11 [WCB No. G031 4651, May 11, 2016]; Employer: Southwest Airlines, 2016 NY
Wrk. Comp. LEXIS 3631, *15-16 [WCB No. 8080 6877, April 18, 2016]; Employer:
Tital Wrecking & Environmental, 2016 NY Wrk. Comp. LEXIS 2464, *8-9 [WCB No.
G013 0080, March 22, 2016]; Employer: Associated Supermarket, 2015 NY Wrk. Comp.
LEXIS 10493, *8 [WCB No. 0072 0715, November 13, 2015]; Employer: Matter of Con
Edison Co., 2015 NY Wrk. Comp. LEXIS 8516, *11-12 [WCB No. 0976 1202, October
02, 2015]; Employer: Rural Metro Corp.,2015 NY Wrk. Comp. LEXIS 3967, *3, *9-10
[WCB.No. 024 2269, May 14, 2015].)
The Court and the Board are also right to refuse to find anyone capable of less
than sedentary work must be unable to do any work at all. As was explained above, the
Board finds claimants can do less than sedentary work if they can do sedentary work
for fewer hours than are typically demanded in the labor market or work that allows them
to change positions rather than sit most of the day. These work arrangements are more
available than ever in today s “ gig economy” of short term jobs involving remote work.
While the appellant raises two different grounds for why the Board was required
to find her totally disabled because of her restriction to less than sedentary work, his
arguments are unconvincing.
There is simply no support whatsoever for the appellant’s first argument - that a
Board exertional ability finding of less than sedentary work under the 2012 Guidelines is
precisely equivalent to a finding of a total disability under the prior, 1996 Guidelines.
Indeed, there is good reason to reject this assertion. A level of exertional ability (such as
“ medium work or “ less than sedentary work ) under the 2012 guidelines is one of many
11
factors that a law judge considers in determining a claimant s level of impairment. Other
factors that the law judge considers include the relative severity of a claimant s non¬
schedule condition, as given on Table 18.1, the Medical Impairment Severity Crosswalk,
and any other medical conditions that a claimant has. If a claimant is not totally disabled,
the law judge then considers that claimant’s functional abilities, medical impairment
level, and non-medical factors to determine his or her loss of wage earning capacity.
This loss of wage earning capacity directly translates into the level of benefits that
claimant is entitled to.
On the other hand, the level of permanent disability assigned by doctors under the
1996 guidelines (such as mild, “ moderate, “ marked or “ total ) were almost always
treated as translating directly to a specific level of benefits, even at when determining
permanent impairment. Indeed, statements in the 2012 Guidelines that the “ physician’s
role is to objectively assign the category of impairment that best fits the claimant at the
time of MMI and that “ [mjedical impairment cannot be directly translated into loss of
wage-earning capacity (2012 Guidelines, 48) make clear that the new guidelines were
aimed in part at preventing doctors from giving opinions that judges could-while
blatantly ignoring non-medical factors translate directly into awards of benefits.
Finding, as the appellant urges, that the exertional abilities findings which the 2012
Guidelines require doctors to make equate precisely to levels of disability under the 1996
guidelines would effectively undo this reform. That is, the classification, severity
ranking and relative severity class on the Medical Impairment Severity Crosswalk would
be rendered completely irrelevant to the analysis and vocational factors would again
become an afterthought forjudges to list out after deciding what benefits to award.
12
There is also no support for the appellant s second assertion on this point that a
finding of less than sedentary work should have the same impact on a case at the New
York Workers Compensation Board as it has before the U.S. Social Security
Administration. Initially, it is clear that the appellant presents no actual evidence of what
procedures or discussions the Board engaged in prior to adopting the 2012 Guidelines or
even that there is any linguistic similarity to any SSA provision.
Second, even if the appellant showed some similarities as to the definitions of
less than sedentary work used by the Board and by the SSA, the systems are so
different that one could not expect the same results in cases on this basis alone. Most
importantly, unlike in New York’s workers’ compensation system, the SSA grid rules
referenced by the appellant’s brief mandate awards of full disability benefits to people
who can still perform gainful work without allowing any individualized assessment of
their loss of wage earning capacity. For example, anyone aged 50 or above who is
limited to sedentary work because of certain impairments recognized by the SSA, and
whose skills do not transfer to a sedentary job is automatically considered “ disabled and
entitled to full benefits. (20 CFR Section 201.14.) It would be not only unusual but
improper for the New York Workers’ Compensation Board to find a claimant was totally
disabled solely because of these circumstances without taking an individualized decision
that considers all the evidence. Where a claimant is found able to do some work, it
would be clear error for the Board not to consider all the vocational factors, including
English ability, driving ability and education.
Since New York’s Workers’ Compensation Board would not automatically regard
those who can only do sedentary work as disabled in every case that the Social Security
13
Administration automatically recognizes a disability, it would be unreasonable to assume
that the Board would regard those limited to less than sedentary work as automatically
disabled whenever the Social Security Administration does.
(d) The appellant can do some work that is less than sedentary and so is not
totally disabled.
As was discussed above, a person who the Board categorizes as capable of only
less than sedentary work is able to either (1) do work that is sedentary for less than a
normal work day or (2) work that is less than sedentary, such as work that does not
confine a worker to sitting most of the day.
Again, Dr. Sotudeh s findings are essentially consistent with sedentary work
except that the appellant is only able to work for four hours per day and to sit for two
hours. Dr. Henoch found the appellant could sit for 20 minutes to 30 minutes at a time,
but he never testified to an upper limit of how long the appellant could sit stand or walk
each day.
Therefore, there is substantial evidence in the record that the appellant is able to
do both work that is less than sedentary in that it allows frequent changes in position,
(including working from home) and work that is less than sedentary because it does not
amount to a full work day but which would otherwise be considered sedentary work.
Thus, there is substantial evidence that the appellant can do some work and that,
as such, that she does not have a total disability.
The Board s refusal to find a total disability in this case is not an outlier. A non-
exhaustive search on Lexis.com revealed that Board has issued at least nine appellate
decisions in which it concluded that (1) the claimant was capable of less than sedentary
work, (2) the claimant had a lumbar spine condition of severity H through J and (3) the
14
claimant was not totally disabled. {Employer: Salmagundi Club Inc, 2016 NY Wrk.
Comp. LEXIS 9397, *11-12 [WCB No. G065 5973, September 14, 2016]; Employer:
NYC Housing Authority, 2016 NY Wrk. Comp. LEXIS 7875, *12-13 [WCB No. G030
5567, August 11, 2016]; Employer: Southwest Airlines, 2016 NY Wrk. Comp. LEXIS
3631, *15-16 [WCB Doc. 8080 6877, April 18, 2016]; Employer: NYC Transit Authority,
2016 NY Wrk. Comp. LEXIS 445, *8 [WCB No. 0084 0673, January 15, 2016];
Employer: Eastern Suffolk Boces, 2015 NY Wrk. Comp. LEXIS 9453, *10 [WCB Doc.
016 6550, September 03, 2015]; Employer: Schervier Nursing Care Center, 2015 NY
Wrk. Comp. LEXIS 7007, * 11 [WCB No. GO12 0676, August 05, 2015]; Employer: NY
Presbyterian Hosp., 2016 NY Wrk. Comp. LEXIS 7133, *13 [WCB Doc. G102 0325,
July 25, 2016]; Employer: Rural Metro Corp., 2015 NY Wrk. Comp. LEXIS 3967, *10
[WCB Doc. 2015 NY Wrk. Comp. LEXIS 3967, May 14, 2015]; Employer: North Shore
@ Southside Hosp., 2014 NY Wrk. Comp. LEXIS 8264, *4, *9-10 [WCB No. 4070
8039, November 26, 2014].)
The claimant s contention that a decision of this Court, Matter of VanDermark v
Frontier Ins. Co., 60 AD3d 1171 (3rd Dept 2009), requires reversal of the Board’s
decision is clearly based on a misreading of that case’s procedural posture. In
Vandermark, the Court upheld the Board’s finding of a total disability because it was
supported by substantial evidence. Of course, if the Board in VanDermark had reached
the opposite conclusion - that the claimant was not totally disabled - there might also
have been substantial evidence to support that decision. Thus, whatever the facts of
VanDermark might be, it cannot support overturning the Board in this or any other case.
15
II. The Court upholds the Board s conclusions regarding a claimant’s LWEC when
these are supported by substantial evidence. Here, the Board found the claimant
had a severity J lumbar condition, could do work that was less than sedentary, was
56 years old, had limited English reading and speaking ability, could not write in
English, had an 8th grade education, and only had experience in jobs involving all
day sitting or standing. Thus, the Court should uphold the Board’s decision that the
claimant had an LWEC 10% higher than her 75% degree medical impairment.
Under section 9 of the 2012 Guidelines, the duration of benefits for a claimant
with a permanent partial disability is limited based on that claimant s loss of wage
earning capacity. The Court defers to the Board’s judgment regarding the calculation of
a claimant’s loss of wage earning capacity, so long as that judgment is supported by
substantial evidence. ( Matter of Baczuk v Good Samaritan Hosp., 132 AD3d 1033, 1035
[3rd Dept 2015].) Loss of wage earning capacity is calculated based on three elements:
(1) medical impairment, (2) functional ability/loss, and (3) non-medical/vocational
factors. (2012 Guidelines, 44.)
With respect to the first of these factors, the Board concluded that the appellant
had a 75% rate of medical impairment. This finding is supported by substantial evidence.
In particular, as Dr. Hencoh testified and the Board found, the appellant has a lumbar
spine condition of severity J. Under the Board’s Medical Impairment Severity
Crosswalk, this type of impairment has a relative severity class of 4 on a scale where 0 is
no impairment and 6 is a total impairment. (2012 Guidelines, 120.) That is, the
appellant’s score was at least 66.66% of the way up from the bottom of the crosswalk but
was less serious than a condition with a relative severity class of 5, which would be
83.33% of the way up the crosswalk. A finding of 75% medical impairment was
therefore not an unreasonable finding given that the appellant had no other established
medical conditions to exacerbate her impairment level.
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With respect to the second factor, functional ability/loss, there has been ample
discussion above as to why there is substantial evidence to support the finding that the
appellant can do work that falls outside the strictures of sedentary work.
With respect to the third factor, the 2012 Guidelines list the non-medical factors
that can impact loss of wage earning capacity as including: (a) skills, (b) age, (c) literacy
and English proficiency and (d) other considerations. (Guidelines, 49.)
As with medical evidence, the Court upholds the Board s conclusions with respect
to the non-medical factors affecting a permanently disabled appellant’s ability to work
and earn wages where these are supported by substantial evidence. (See Matter of Ping
Guan v CPC Home Attendant Program, Inc., 50 AD3d 1218, 1220 [3rd Dept 2008].) As
with medical findings, this deference applies as much to what reasonable inferences to
draw from factual findings as to the findings themselves.
The Board found that the appellant was 56 years old, that she was unable to write
in English, that she had a limited capacity to read and speak English, that her education
limited to the 8th grade, and that her prior work experience was in jobs that required her
to sit and stand all day. (R. 10.) The Board stated that these non-medical factors,
combined with the appellant’s medical impairments and her limitation to less than
sedentary work made her “ less attractive on the job market. (R. 10)
The record establishes that the Board gave the appellant’s non-medical
impairments significant weight in calculating his loss of wage earning capacity. While
the Board concluded that the appellant had a 75% degree of medical impairment, after
considering the non-medical factors and the appellant’s functional abilities, the Board
found that the appellant had an 85% loss of wage earning capacity.
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The Court has overturned the Board for failing to properly account for non¬
medical factors. But where that actually occurred, in Matter of Ping Guan v CPC Home
Attendant Program, Inc., 50 AD3d 1218, 1220 (3rd Dept 2008), the claimant not only
had the appellant s advancing age, and limited education, training and proficiency in
English, but, also had the additional factors of impaired manual dexterity, reduced
physical stamina and limited attention span. Moreover, in Pin Guan the Board had
actually found that the claimant was unable to return to any type of employment {Id.
emphasis in original.) In cases, like the one before the Court, where the Board has
neither found the appellant unemployable nor found such extreme impairments, the Court
should uphold the Board’s decision as supported by substantial evidence.
Moreover, the Board’s decision on the issue of the loss of wage earning capacity
is consistent with other Board decisions where similar functional, medical and vocational
factors were at issue. In the Salmagundi Club case, the Board found that the claimant had
an 81% LWEC based on his 75% level of medical impairment, his limitation to less than
sedentary work, and non-medical factors that included being 65 years old, being unable
to drive, needing help reading and writing English, and that he had been training to be a
chef since age 13 with no other experience. (2016 NY Wrk. Comp. LEXIS 9397 *11-12,
*16-17 [WCB No. G065 5973, September 14, 2016]). The Board also refused to award a
100% LWEC in the Vrapo Construction case, despite the fact that the claimant had been
educated in Ecaudor through only the sixth grade, could not read or write English well,
had only worked as a carpenter and was capable of less than sedentary work. (2015 NY
Wrk. Comp. LEXIS 10460, *5, *13-14 [WCB No. 040 1664, November 12, 2015.) The
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ultimate LWEC in the Vrapo Construction case was higher than the LWEC here, but the
claimant there also had a cervical spine impairment of severity G. ( Id. at *13.)
On the other hand, in a case where a claimant could speak, read and write English
well, the Board found that she had a loss of wage earning capacity of just 65%, despite
having the same restriction to less than sedentary work and the same lumbar spine
condition with severity J as the appellant does in this case. (Employer: NYC Housing
Authority, 2016 NY Wrk. Comp. LEXIS 7875, *12-13 [WCB No. G030 5567, August
11, 2016]).
Thus, it is clear that the Board gave due consideration to the claimant s medical
and non-medical impairments and awarded an LWEC supported by substantial evidence.
CONCLUSION
For the reasons stated above, the decision of the Board’s panel dated August 6,
2015 concluding that the claimant is permanently partially disabled with a loss of wage
earning capacity of 85.00% is supported by substantial evidence. Therefore, the Court
should affirm the Board’s decision.
Dated: New York, New York
October 11, 2016
Respectfully submitted,
/John Evan Perigoe *
WEISS, WEXLER & WORNOW, P.C.
Attorneys for Employer/Carrier-Respondents
25 Park Place, 4th Floor
New York, New York 10007
(212) 227-0347
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